Okay. I know I'm just a lowly 1L, but can someone out there explain how a local ordinance can supercede the 2nd Amendment to the U.S. Constitution? Also, if the city bans military recruitment- of federal soldiers/sailors/airmen, can the federal government withhold federal dollars in funding?

6 comments:

The most likely error in the firearm ordinance is a violation of Dillon's Rule. I did a quick search for the word "pistol" in California's code and got quite a few hits. The State has probably already set out a scheme for regulating the possession of firearms.

As for the military recruiting ban, it could be constitutional as long as the schools are banned from allowing any other post high school organization from coming to campus. However, the second a college football scout comes on campus or a Harvard rep pokes his head in the door it becomes a case of view point discrimination of a forum restricted by a governmental entity.

All-in-all, this are just "feel good" ordinances passed despite the fact that we all recognize they have problems. In fact, one talking head I was listening to today asserted that the exact same gun ordinance had passed a couple years ago and been struck down by the courts (although, I have not been able to independently verify this).

We're not immune to this sort of sentiment in Virginia. Remember that after Lawrence there were men in the General Assembly who stood in favor of leaving the (unconstitutional) sodomy laws on the books because it was the right thing to do.

You don't take Con Law as a 1L? You'll go over how the development of the application of the Bill of Rights, including incorporation and ordered liberties in class.

The Second Amendment does not apply to state or local action. However, individual amendments were "incorporated" piecemeal through individual Supreme Court decisions, under the guise of the 14th Amendment, specifically, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." For example, Gitlow v. New York, 268 U.S. 652 (1925), held the First Amendment applied to states and Mapp v. Ohio, 367 U.S. 643 (1961), held the Fourth Amendment applied to states. Almost all of the Bill of Rights, even the Third Amendment through Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), have been incorporated. However, there are noticible exceptions. States are not required to have jury trial in civil suits over $20 as the 7th Amendment requires. Louisiana won't even think about a jury trial unless the amount in controversy is over $50,000. States are not required to have grand jury indictments that the 5th Amendment requires. In California, preliminary hearings take the place of grand jury indictments. Grand juries in California are usually used for local government oversight instead.

The Second Amendment is another one that was not incorporated by the 14th Amendment. Read Quilici v. Village of Morton Grove, 695 F.2d 26 (7th Cir. 1982) for a famous example of a local handgun ban being upheld as constitutional. Chicago and Washington, D.C. have similar bans. So citizens of San Francisco can not claim Second Amendment protection. The California Constitution has no provision for a right to bear and keep arms, so no luck there.

The NRA is currently suing San Francisco for an injunction of enforcement of Prop. H., and it's likely to win. San Francisco enacted a similar ban 20 years ago and it was overturned for conflict with state law. Doe v. City and County of San Francisco, 136 Cal. App. 3d 509 (Cal. Ct. App. 1982). The current suit raises the same issues.

As for Prop I, have you encountered any discussion about the Solomon Amendment at your law school? Under the Solomon Amendment, 10 U.S.C. 983, the federal government can deny federal funding to schools of higher education if they don't allow military recruiters on campus. However, the American Association of Law School, of which pretty much every law school in the United States is a member, has a policy to not discriminate on basis of sexual orientation. The military's current policy on homosexual is considered discrimination. Hence, members of the AALS may choose not to allow military recruiters on campus because they discriminate against homosexuals. Thus, some schools do a kabuki dance in which military recruiters can recruit across the street from campus, have JAG officers come on campus to give a lecture, or some other subterfuge. Other schools just ban miilitary recruiters. A coalition of law schools and law student named Forum for Academic and Institutional Rights sued Donald Rumsfeld for an injunction on the grounds that the Solomon Amendment violated the First Amendment. They lost in District Court of New Jersey, but the Third Circuit reversed. The DoD of course appealed and the Supreme Court has granted certiorari. Rumsfeld v. FAIR is on the docket for the current Term of the Supreme Court. Oral arguments are scheduled for December 6, 2005. So the answer to your question is, no one can say yet.

I don't know if it's a Virginia thing, but my law school didn't have ConLaw until the second year either. One semester. As you might imagine there wasn't room for everything and I don't remember having spent any time on the 2d Amendment at all.

Wasn't there a big fuss a few years back when a federal judge (not sure where) actually found that the 2d Amendment was an individual right protected under the 14th? I have vague memories of something along these lines. However, as a criminal law attorney my bailiwick is 4th, 5th, and 6th; I've never had the 2d come up as part of a criminal case (thus not up to date on my research).

Thanks for the info on the Rumsfield case. Again, not my area of expertise and I appreciate the help in answering Steve's question. BTW: Is the issue in Rumsfield viewpoint discrimination?

The case you're probably thinking of is United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), in which the Fifth Circuit was asked to decide to overturn a conviction for violating a court order which specifically prohibited the possession of firearm, on the basis of the individual rights interpretation, or as the court called it, "The Standard Model," of the Second Amendment. The opinion even cites Glenn Reynolds. The Fourteenth Amendment wasn't an issue, since his conviction was based on federal statute, 18 U.S.C. 922(g)(8). The court agreed with "The Standard Model," but acknowledged there may be some limitation, such as an restraining order against an ex-husband with a propensity for violence. It's not in the facts in the opinion, but Emerson's possession was a Beretta pointed at his ex-wife and child. He had also told San Angelo police that he had an AK-47 and planned to kill his ex-wife and son with it. His actual inventory were two Berettas, a SKS, a M1 carbine configured for automatic fire, and a semiautomatic M14. Sometimes advocates of the individual rights model of the Second Amendment are hesitant to cite this case.

The Third Circuit ruled in favor of FAIR based on the law schools' right to freedom of association and freedom of speech, because the Solomon Amendment prevented them from conveying the message of their choice, that they do not discriminate against homosexuals.

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.